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American Specialty Agriculture Act
On September 7, 2011 Chairman of the House Judiciary Committee Lamar Smith (R-TX) introduced the American Specialty Agriculture Act (H.R.2847). This bill would create a new, less burdensome temporary foreign agricultural worker program to replace the current H-2A program.
Despite substantial efforts to recruit and train U.S. workers, horse farms, ranches, and breeding facilities must use temporary foreign agricultural workers, currently through the H-2A program to meet their labor needs. Without foreign workers, many of the horse breeding farms upon which the horse industry depends could not continue to operate.
Earlier this year Chairman Smith introduced the Legal Workforce Act (H.R.2164). This bill would require all employers to use the federal E-verify system to make sure all their workers are authorized to work in the U.S. It is expected the House Judiciary Committee will mark-up and approve this E-verify bill sometime this year.
Chairman Smith has now introduced the American Specialty Agriculture Act in response to concerns that if his E-verify bill is made law American agricultural producers will not have access to a legal workforce due to the failings of the current H-2A program.
Currently, applying for H-2A workers is a costly, difficult process. Often the system is unreliable and employers are left without workers when they are needed most. Many horse industry users of the program report unexplainable delays in the application process. Additionally, a lack of consistency in the adjudication of applications is becoming increasingly frustrating for those in the industry. Because of the complexity, cost, and recent Department of Labor (DOL) rules governing the program that went into effect in 2010, the H-2A program is not a reliable system to provide the workers agricultural employers like horse farms need.
The bill would create a new foreign temporary agricultural worker program called H-2C to replace the current H-2A program. The H-2C program would share many characteristics with the current H-2A program such as protections for American and foreign workers and requirements to reimburse H-2C workers for travel and provide for housing. However, the H-2C program envisioned in this bill would have major differences from the current H-2A program intended to make an H-2C program more user friendly. Major provisions of the bill include:
- The H-2C program would be administered by the U.S. Department of Agricultural (USDA). The H-2A program is administered by the Department of Labor. It is expected the USDA would be more attuned to the particular labor needs of farmers.
- The program would be attestation-based to reduce red-tape for agricultural employers. The H-2A uses a certification process that is paperwork and labor intensive.
- The bill would give employers the option to provide either housing or housing vouchers to pay for housing for foreign works. The H-2A program requires employers to provide and maintain housing for workers on site.
- The bill would require employers to pay the prevailing wage rate to H-2C workers. The H-2A program requires employers to pay the adverse effect wage rate that is considered artificially high.
- The bill would require employers reimburse an H-2C worker for the transportation costs from the worker’s home to the place of employment if the worker completes 50% of the work contract period. A recent court decision directs H-2A employers to reimburse workers for travel the first week of employment.
- The H-2C program does not have a “50%” rule that requires employers to provide employment to any U.S. workers who apply until 50% of the worker’s work contract period is elapsed.
- The bill would require employers guarantee to use H-2C workers at least half of the workdays during the period of the work contract. The H-2A program requires employers guarantee three-fourths of the workdays during the period of the work contract.
- Unlike the H-2A program, the new H-2C program does not require the qualifying work to be of a temporary or seasonal nature. This would allow horse farms to use H-2C workers for non-seasonal jobs.
- The bill requires H-2C workers to return home after 10 months of work.
- The H-2C program would have a cap of half a million foreign workers a year. The H-2A program has no cap.
The bill has been referred to the House Committee on the Judiciary Committee. On September 8, 2011 the House Judiciary Subcommittee on Immigration Policy and Enforcement held a hearing on this bill.
The AHC has not taken a position on this bill.